“Our Constitution is so old,” says Heidi Schreck in her 2019 Pulitzer– and Tony–nominated play What the Constitution Means to Me. The line is a deliberate double-entendre, its meaning turning subtly on intonation. On the one hand, it captures the complaints of those who want to change the system—so old carrying the sense of obviously obsolete. On the other hand, it gestures at the reverence of those who think it’s our rock—so old, in this case, meant as a badge of honor. By binding these two visions together, the line also gives expression to the ambivalence of liberals like Heidi and me, who were taught to believe that the Constitution can and does change but have learned to wonder about who has benefitted from its protections, much less its ambiguities.
Lately, the debate about whether the Constitution is the problem or the solution has reached a new level of intensity. An older standoff between originalist jurisprudence and living constitutionalism has come to seem quaint, especially in the face of design flaws, from the Electoral College to the Senate, that critics allege have never been addressed, much less fixed. The controversy is as weighted and as polemical as the famous debates between the Ancients and the Moderns over the value of Greek and Roman classics, a debate that in many ways set the stage for the Enlightenment, the age of Revolutions, and the Constitution itself. Historians find themselves working overtime, called in as consultants, their work on the distant past suddenly rendered relevant. Two new books reveal the widening gulf between those who see the Constitution’s age as a sign of its wisdom and those who see it as the dead hand of the past. At stake is also a longer conflict about whether U.S. history is a matter of great changes or a changing sameness.
The terms of the revived debate today began to take shape in the early twentieth century, when a chorus of self-styled Progressives called for major policy changes to redress structural inequalities and rampant corruption. Though accused of being radical, and often moralistic, they were also professionals in their various fields, well-meaning, and not least burdened by a sense of guilt at their personal good fortune after a series of national economic downturns. They sought to use the tools of modern social analysis and science to create better government. In the young disciplines of history and political science, one of their controversial avatars was a Midwesterner and Columbia professor named Charles Beard, who in 1913 more seriously pursued the suggestion of an earlier scholar, Orin G. Libby, that perhaps the framers of the Constitution had been an alliance of commercial classes more than a virtuous convocation of statesmen. Beard pushed the class analysis even further, depicting the framers as a self-interested clique of bondholders. The implications were obvious. If the Constitution fashioned in 1787 primarily served the class alliances of its time and its authors, then its institutional apparatus could be tinkered with or even thrown aside as decrepit in its very mode of operation as well as its unfortunate results. (It was not a coincidence that the years between 1913 and 1920 saw constitutional amendments permitting the income tax, establishing the direct popular election of U.S. senators, and female suffrage.)